American Financial Group, Inc.; Rule 14a-8 no-action letter
DIVISION OF CORPORATION FINANCE
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-3010
March 6, 2009
Karl J. Grafe Vice President & Assistant General Counsel American Financial Group, Inc. One East Fourth Street Cincinnati, OR 45202
Re: American Financial Group, Inc.
. Incoming letter dated Januar 7, 2009
Dear Mr. Grafe:
This is in response to your letters dated Januar 7,2009, Februar 10, 2009 and
Februar 23, 2009 concerning the shareholder proposal submitted to AFG by the New
York City Employees' Retirement System, the New York City Teachers' Retirement
System, the New York City Police Pension Fund, the New York City Fire Deparent
Pension Fund, and the New York City Board of
Education Retirement System. We also
have received letters on the proponents' behalf dated February 5, 2009, Februar 11,
2009, and February 12,2009. Our response is attached to the enclosed photocopy of
your
correspondence. By dotng this, we avoid having to recite or sumarize the facts set forth
in the correspondence. Copies of all of
the correspondence also wil be provided to the
proponents.
In connection with this matter, your attention is directed to the enclosure, which
sets forth a brief discussion of
the Division's informal procedures regarding shareholder
proposals.
Sincerely,
Enclosures
cc: Richard S. Simon
Deputy General Counsel Office ofthe Comptroller
1 Centre Street
New York, NY 10007-2341
Senior Special Counsel
DIVISION OF CORPORATION FINANCE
INFORM PROCEDURS REGARING SHAREHOLDER PROPOSALS
The Division of Corporation Finance believes that its responsibility with respect to
matters arsing under Rule 14a-8 (17 CFR 240.
14a-8), as with other matters under the prQxy
rules, is to aid those who must comply with the rule by offering informal advice and suggestions
and to determine, initially, whether or not it may be appropriate in a paricular matter to .
recommend enforcement action to the Commission. In connection with a shareholder proposal
under Rule 14a-8, the Division's staff considers the information furnished to it by the Company
in support of its intention to exclude the proposals
from the Company's proxy materials, as well
as any information fuished by the proponent or the proponent's representative.
Although Rule 14a-8(k) does not require any communcations from shareholders
to the
Commission's staff, the staffwil always consider information concerning alleged violations of
the statutes administered by
the Commssion, including arguent as to whether or not activities
proposed to be taken would be violative of the statute or rule involved. The receipt by the staff
of such information, however, should not be construed as changing the staffs informal
procedures and proxy review into a formal or adversar procedure.
It is important to note that the staffs and Commission's no-action responses to Rule 14a-8(j) submissions reflect only informal views. The determnations reached in these no
action letters do not and canot adjudicate the merits of a company's position with respect to the
proposal. Only
a cour such as a U.S. Distrct Court can decide whether a company is obligated
. to include shareholder proposals in its proxy materials: Accordinglya discretionar
determination not to recommend or take Commission enforcement action, does not preclude a
proponent, or any shareholder of a company, from pursuing any rights he or she may have against
the company in cour, should the management omit the proposal from the company's proxy
materiaL.
March 6, 2009
Response of the Office of Chief Counsel Division of Corporation Finance
Re: American Financial Group, Inc. Incoming letter dated January 7, 2009
The proposal relates to the company's equal employment opportity policy.
There appears to be some basis for your view that AFG may exclude the proposal under rule 14a-8(h)(3). We note your representation that AFG included the proponents' proposal in its proxy statement for its 2008 anual meeting, but that neither the proponents nor their representative appeared to present the proposal at this meeting. Moreover, the proponents have not stated a "good cause" for the failure to appear. Under the circumstances, we wil not recommend enforcement action to the Commission if AFG omits the proposal from its proxy materials in reliance on rule 14a-8(h)(3). This response will also apply. to any future submissions to AFG by the same proponents with respect to
any shareholder meetings held durng calendar year 2009 and calendar year 20 I O.
Sincerely,
Michael Reedich Special Counsel
;'
-- 2
~
AMRICAN ? FINACIAL
GROUP, INC.
Karl J. Grafe
Vice President & Assistant General Counsel
Direct Dial: 513-579-2540
Fax: 513~579-0J08
Februar 23, 2009
VIA EMA (shareholderproposals(?)~ UPSOvemight
u.s. Securities and Exchange Commission Division of Corporation Finance
Office of Chief Counsel
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: American Financial Group, Inc. ("AFG" or the
"Company") Shareholder Proposal for 2009
Annual Meeting Submitted by certain
City Pension Funds
New York
Dear Sir or Madam:
I wrte asa follow-up to my earlier letters dated Januar 7, 2009 and February 10,
2009 in connection with a shareholder proposal (the "2009 Proposal") submitted to AFG
on behalf of
the New York City Employees' Retirement System, the New York City
Teachers' Retirement System, the New York City Police Pension Fund, the New York City
Fire Departent Pension Fund, and the New York Board of
Education RetirementSystem
Funds. . (collectively, the "Funds") seeking inclusion in the proxy materials to be made available to
AFG shareholders in connection with pur May 14, 2009 annual meeting. My January 7
letter inadvertently omitted "the New York Board of Education Retirement System" from
the list of
AFG represents
that the Funds submittng the 2009. Proposal are the same Funds
that submitted a substantially similar proposal for AFG's 2008 annual meeting of
shareholders.
AFG. hereby requests confirmation from the Staff that the 2009 Proposal may be
excluded from the Company's 2009 proxy materials, and concurrently requests forward
looking relief that any
proposals that the
Funds may submit fot inclusion in AFG's 2010
,proxy materials may also be
excluded because the Funds have not shown "good cause" for
their failure to appear and present their substantially similar proposal at last year's meeting
of AFG shareholders.
One East Fourth Street
Cincinnati, Ohio 45202
U.S. Securities and Exchange Commission Division of Corporation Finance Office of Chief Counsel February 23, 2009
Page 2
Please feel free to contact me at (513) 579-2540 with any
questions concerning this matter.
Very trly yours,
AMERICAN FINANCIAL GROUP, INC.
,I-I",","' .l.-.
By: Karl J. Grafe Vice President
cc: Richard S. Simon, Esq. Deputy General Counsel
The City of
New York
Office of the Comptroller
.-
General Counsel
1 Centre Street, Room 602
New York, N.Y. 10007-2341
James C. Kennedy, Esq.
S:?Legal\K.G?AFG\PROXY\2009\KJG SH Response 2009-3.doc
One East Fourth Street
Cincinnati, Ohio 45202
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